Citation Nr: 1013017
Decision Date: 04/06/10 Archive Date: 04/14/10
DOCKET NO. 95-00 319 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for a disability of the
right elbow.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. Barstow, Associate Counsel
INTRODUCTION
The Veteran had active military service from January 1960 to
July 1960, and from March 1961 to June 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a June 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
The Board notes that the Veteran requested and was scheduled
for a Travel Board hearing before a Veterans Law Judge, but
did not appear for the hearing. Accordingly, the Board
considers the appellant's request for a hearing to be
withdrawn and will proceed to adjudicate the case based on
the evidence of record. See 38 C.F.R. § 20.704 (d), (e)
(2009).
The issue was remanded by the Board in March 2009 for due
process notification and a VA examination. A review of the
record indicates that the Board's remand instructions have
been substantially complied with. See Stegall v. West, 11
Vet. App. 268, 271 (1998).
FINDING OF FACT
The Veteran does not have a disability of the right elbow.
CONCLUSION OF LAW
The Veteran does not have a disability of the right elbow
that is the result of disease or injury incurred in or
aggravated during active military service. 38 U.S.C.A.
§§ 1110, 1131, 1137, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that
the claimant is expected to provide. VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see
Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd
on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (when VCAA notice follows the initial unfavorable
AOJ decision, subsequent RO actions may "essentially cure[]
the error in the timing of notice").
The Board notes that the Veteran was apprised of VA's duties
to both notify and assist in correspondence dated in March
2009 following the Board's remand for VCAA notification.
(Although the complete notice required by the VCAA was not
provided until after the RO adjudicated the appellant's
claim, any timing errors have been cured by the RO's
subsequent actions. Id.)
Specifically regarding VA's duty to notify, the notification
to the Veteran apprised him of what the evidence must show
to establish entitlement to the benefits sought, what
evidence and/or information was already in the RO's
possession, what additional evidence and/or information was
needed from the Veteran, what evidence VA was responsible
for getting, and what information VA would assist in
obtaining on the Veteran's behalf. The notification
included the criteria for assigning disability ratings or
for award of an effective date, see Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). The RO also provided a
statement of the case (SOC) and two supplemental statements
of the case (SSOC) reporting the results of its reviews of
the issue on appeal and the text of the relevant portions of
the VA regulations.
Regarding VA's duty to assist, the RO obtained the Veteran's
service treatment records (STRs), post-service medical
records, and secured examinations in furtherance of his
claim. VA has no duty to inform or assist that was unmet.
VA opinions with respect to the issue on appeal were
obtained in February 2003, April 2003, and May 2009.
38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to
provide a VA examination or obtain a VA opinion, it must
ensure that the examination or opinion is adequate. Barr v.
Nicholson, 21 Vet. App. 303, 312 (2007). As noted below,
the Board finds that the February 2003, April 2003, and May
2009VA opinions obtained in this case were sufficient, as
they were predicated on a full reading of the VA medical
records in the Veteran's claims file. They consider all of
the pertinent evidence of record, the statements of the
appellant, and provide explanations for the opinions stated.
Accordingly, the Board finds that VA's duty to assist with
respect to obtaining a VA examination or opinion with
respect to the issue on appeal has been met. 38 C.F.R.
§ 3.159(c)(4).
II. The Merits of the Claim
The Veteran contends that he has a disability of his right
elbow that is related to an in-service accident.
Law
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303. Service connection may also be granted for any
injury or disease diagnosed after service, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. 38
C.F.R. § 3.303(d). Generally, service connection requires
(1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. See Caluza
v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases,
including arthritis, may be presumptively service connected
if they become manifest to a degree of 10 percent or more
within one year of leaving qualifying military service.
38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2009).
Analysis
The Veteran's STRs show that he was struck by a motor
vehicle in 1961 and his right arm hit the windshield. The
Veteran's discharge examination in June 1969 showed no
disability of the right elbow. The Board notes that the
Veteran has been service-connected since 1970 for a
laceration on his right arm as a result of the in-service
accident.
Of record are numerous VA and private treatment records
dated through February 2010. They do not show the diagnosis
of any right elbow disability, but records beginning in 2002
show occasional complaints of pain.
The Veteran was afforded a VA examination in February 2003.
His claims file was reviewed. He reported his in-service
injury. He reported that his right elbow was stiff and hurt
all of the time. He also reported that it locked up and was
tender, and there was some burning in the posterior right
elbow. Examination revealed slight swelling on the lateral
portion of the elbow, and the area was tender to touch. X-
rays showed no significant abnormality. The examiner noted
no degenerative joint disease on x-ray, but diagnosed the
Veteran with osteoarthritis.
The February 2003 examiner performed a follow-up examination
in April 2003. The Veteran had tenderness and pain over the
posterior elbow and the lateral portion of the elbow. The
examiner opined that the pain in the Veteran's right elbow
was secondary to the injuries suffered in the accident. He
opined that the laceration and separate scar had no impact
upon that pain, but the injuries suffered would lead to
osteoarthritis of the right elbow.
The Veteran was afforded another VA examination in May 2009.
His claims file was reviewed. The Veteran reported the in-
service accident. He reported that he had no complaints
with the right elbow from the time of returning to his
general duty until about 1992. The Veteran said that he
"had no trouble with the right elbow until I got old." He
reported that he had had no specific treatment for his right
elbow at any time. He complained of pain, but denied
specific treatment for his right elbow at that time. He
reported weakness, and that it popped with supination and
pronation. X-rays showed no acute or significant focal bony
abnormality. The examiner diagnosed the Veteran with pain.
He noted that there were no significant abnormalities noted
on his exam or his imaging.
Here, there is evidence that the Veteran was injured in
service. As noted above, he was struck by a motor vehicle
in 1961, which resulted in service-connection for a scar on
his right arm. However, although the Veteran initially
filed for service connection for injuries from the accident
in 1970, he did not file the current claim until 2002. With
regards to whether there is a current disability, the
evidence is conflicting. The February 2003 examiner
diagnosed the Veteran with osteoarthritis, even though x-
rays showed no abnormality. No objective evidence of
arthritis was shown. The May 2009 examiner did not
diagnosis the Veteran with any disability; he noted that
there were no significant abnormalities on his exam or his
imaging. The Veteran was only diagnosed with pain at that
time. The Board notes that pain alone, without a diagnosed
or identifiable underlying malady or condition, does not
constitute a disability for which service connection may be
granted. Sanchez-Benitez, 13 Vet. App. 282, 285 (1999),
aff'd, 259 F.3d. 1356 (Fed. Cir. 2001). Additionally, the
existence of a current disability is the cornerstone of a
claim for VA disability compensation. 38 U.S.C.A. § 1110
(West 20002); see Degmetich v. Brown, 104 F.3d 1328, 1332
(1997).
Based on a review of the evidence, the Board finds that the
Veteran does not have a current disability of the right
elbow. The Board acknowledges that the February 2003
examiner diagnosed osteoarthritis, which he opined was
related to the Veteran's service. However, considering that
x-rays showing no abnormality at that time, the lack of any
diagnosis of arthritis in the Veteran's voluminous VA
treatment records, and the results of the May 2009
examination showing no disability, the Board finds that the
preponderance of the evidence is against the finding of a
current disability.
The Board's finding is further supported by the absence of
any documented treatment for the Veteran's right elbow prior
to 2002. As noted above, the Veteran initially filed for
service connection for injuries from the in-service accident
in 1970. Although he filed for the scar on his right arm,
he claimed no disability to the right elbow at that time.
Additionally, the Veteran reported to the May 2009 examiner
that he had no trouble with the right elbow until he became
old.
The Court has indicated that normal medical findings at the
time of separation from service, as well as the absence of
any medical records of a diagnosis or treatment for many
years after service is probative evidence against the claim.
See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(affirming Board where it found that veteran failed to
account for the lengthy time period after service for which
there was no clinical documentation of low back condition);
see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir.
2000) (A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability). Thus, the lack of any objective
evidence of right elbow complaints, symptoms, or findings
for more than 30 years between the period of active service
and his claim for service connection is itself evidence
which tends to show that he does not have a right elbow
disability.
The Board acknowledges the Veteran's belief that he has a
disability of the right elbow related to his military
service. However, there is no evidence of record showing
that the Veteran has the specialized medical education,
training, and experience necessary to render competent
medical opinion as to diagnosis of a disability. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)
(1) (2009). Consequently, the Veteran's own assertions as
to diagnosis and etiology of a disability have no probative
value.
The Board has considered the benefit-of-the-doubt doctrine,
but finds that the record does not provide even an
approximate balance of negative and positive evidence on the
merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the
basis of the above analysis, and after consideration of all
the evidence, the Board finds that the preponderance of the
evidence is against the claim. The Veteran does not have a
disability of the right elbow that is traceable to disease
or injury incurred in or aggravated during active military
service.
ORDER
Entitlement to service connection for a disability of the
right elbow is denied.
____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs